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SPAM: Enforcement:
Sending Spammers to the Slammer

  
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The next big question is who gets to whack the spammers? DOJ and the FTC carry primary federal jurisdiction, although a host of other agencies can also whack spammers, including (and I am not making this up) the Secretary of the Agriculture under the Packers and Stockyards Act (who says Congress doesn’t have a sense of humor). The FCC has specific authority to deal with wireless phone SPAM. The provisions which may be enforced by the FTC may also be enforced by states and privately by ISPs. Individuals suffering the onslaught of generous opportunities have no direct recourse, and any recourse they might have had under state law has been pre-empted. Sorry guys (win one for the spammers who don’t want to be sued under state law).

The Feds:

DOJ has authority to whack spammers who hack into computers to send or relay multiple SPAMs or falsifies the header in multiple SPAMs. Congress directs DOJ to “use all existing law enforcement tools to investigate and prosecute” spammers (let’s see, as DOJ, do I go after terrorists or whack spammers? Well Congress directed me to…. With limited enforcement resources and other priorities, it is questionable the degree to which DOJ will be an active prosecutor of spammers). Under DOJ authority, spammers can land in jail for up to 5 years, get hit with some serious fines (note that FTC authority lacks the ability to put spammers in the slammer), and forfeiture of assets. 18 USC s 1037(b).

The Federal Trade Commission, which as a part of its day-to-day duties seeks to protect the consumer, has authority under the act with is crafted more towards the protection of the recipient. Like DOJ, the FTC may take action against a spammer where an individual has received an email from or a hacked computer or relayed through a hacked computer, or where the email has a falsified header (note that the “multiple” requirement imposed on DOJ authority is lacking with FTC authority).

Unlike the DOJ, the FTC has authority to enforce the opt-out requirements, the prohibition against using harvested or dictionary attack email addresses, sexual content restrictions, false subject lines prohibitions, and the required inclusion of specified information. The FTC may also enforce labeling provisions if it elections to implement such restrictions.

The remedies available to the FTC include fines and injunctive relief (cease and desist orders).

Other federal agencies may also prosecute spammers particular to their own individual authority (things such as wire fraud, food and drug law, and customs violations). Additional agencies that have been involved in spam prosecution include the FBI, US Postal Inspection Service, and the SEC.

Unsolicited Commercial Email can be sent to the Federal Trade Commission at spam@uce.gov. 

States may generally enforce those provisions which may be enforced by the FTC (there is a degree of ambiguity between Sec. 7(f)(1) & (2) that state officials should clarify; for some of these provisions the state will have to establish a pattern of behavior). The remedies available to state officials include injunctive relief and the greater of actual damages or statutory damages. Statutory damages amount to $250 per piece of SPAM with a ceiling at $2,000,000 per violation. The state can seek treble damages for aggravated violations. States can also recover attorney’s fees. States must serve notice on the FTC prior to implementing an action; the FTC may join the action; and if the Feds already have an action pending, the state is precluded from initiating an action. Actions must be brought in federal court.

Oh by the way, any inconsistent State SPAM laws have been pre-empted by the Federal CAN SPAM Act (under the Supremacy Clause, the Feds can say that their law trumps state law). There is some room for states to pass their own laws consistent with the Can SPAM Act, however one court recently found that state SPAM laws violate the Commerce Clause of the Constitution.

Service Providers: And now for the moment all networks have been waiting for, the new addition to their business plans: how to make money off of spammers. ISPs may generally bring actions for violations of provisions under FTC authority (note for some of these the ISP will have to establish a pattern of behavior). The remedies available to an ISP include injunctive relief, and actual damages or statutory damages. Statutory damages are $100 per piece of SPAM for email with false headers and $25 per piece of SPAM for everything else. The maximum whack is $1,000,000 per violation. Treble (multiple by 3) damages are available for aggravated violations. Networks may also seek attorneys fees. There is not a requirement that the action be filed in federal court. Can Spam Act Sec. 7(g)

To take advantage of this generous offer from Uncle Sam, one must be an “Internet access service.” The term "Internet access service" means a service that enables users to access content, information, electronic mail, and other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services. 47 U.S.C. § 231(e)(4).

How does one start having spammers pay for retirement? The first step will be to find an attorney (probably a technologically sophisticated one) who is a skilled at litigation and collection of judgments. The next step is to devise a strategy with that attorney which includes which spammers to target (might be difficult to whack a spammer cowering on a beach in Brazil) and for preserving evidence. Legal battles are nasty, brutish, but not short, and better left to people living under bridges. However, attorneys may be willing to work on a contingency basis (the injured network pays nothing to the attorney unless success, in which case the attorney takes a cut) who will gladly take care of the matter.

Finally, note that granting enforcement capability to service providers but not subscribers has been criticized as facilitating agreements between the networks and the spammers. The party of the first part agrees to forego a lawsuit if the party of the second part agrees to share some of its spam-generated wealth with the network. The party of the third part, not a party to the agreement and hereinafter known as the subscriber, still gets annoyed with “exciting opportunities” announced through email.

US Sentencing Commission Request for Comments

Caselaw

  • US v Cyberheat , CV 05-457-TUC-DCB (DAR Mar 2, 2007) (company may be vicariously liable for acts of affiliate contractor which allegedly violated Can Spam Act).
  • Phillips v Worldwide Internet Solutions, Inc., (NDCa 2007) (no attorney fees absent "frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.")
  • US v. Goodin, CR-06xxx (CD Cal 2007)

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